Five Key Amendments to UK’s Equality Act

Draft legislation has been published by the U.K. government that will amend the Equality Act 2010 as of Jan. 1, 2024.

The Equality Act 2010 (Amendment) Regulations 2023 consolidate specific discrimination protections derived from EU case law that would have otherwise ceased to exist at the end of this year as a result of the government's approach to Brexit.

Background to the Amendments

Following the U.K.'s exit from the EU, the government put in place arrangements to preserve laws derived from the EU into the U.K.'s domestic legal framework to give it time to evaluate those it wanted to repeal, amend, or replace.

The Retained EU Law (Revocation and Reform) Act 2023 (the act) was designed to speed up that process. From the end of 2023, the Supreme Court and Court of Appeal won't have to interpret EU retained law in line with the underlying directives and the principle of supremacy of EU law and all directly effective EU rights will go too. To avoid the legal uncertainty this would cause in the context of employment, the government will amend the Equality Act to ensure that tribunals continue to interpret U.K. equality law in line with decided EU cases.

In general, the law isn't changing. Instead, the Equality Act is being rewritten to codify EU discrimination case law that tribunals and higher courts already factor into their decision-making processes.

The amendments should make the written law clearer for both employers and employees to understand and interpret. But some uncertainties remain and will, no doubt, have to be tested in the courts. On that point, it's worth noting that the act gives lower courts the ability to refer a point of law to the Court of Appeal or Supreme Court to determine.

The following are key changes.

Expanded Definition of Disability

Under the current Equality Act 2010, a person has a disability if they have a physical or mental impairment that has a substantial and long-term effect on their ability to carry out normal day-to-day activities. New wording will be added to ensure that when evaluating normal day-to-day activities, a person's ability to participate fully and effectively in working life on an equal basis with other workers must be considered.

Protection for Breastfeeding Mothers

Currently, Section 13 protects women from direct sex discrimination if they are treated less favorably because they are breastfeeding. However, this right is expressly stated not to apply to discrimination at work. The government will remove this exclusion and, in doing so, signal to women that if they are treated less favorably at work because they are breastfeeding, they will be able to bring direct sex discrimination claims against their employers.

Less favorable treatment will include a failure to undertake a personal risk assessment for a returning mother or failing to provide suitable facilities for her to store and express breast milk. However, it's not clear if changing the legislation in this way this will give women the green light to demand the right to breastfeed at work—an argument that has previously been rejected by a first instance tribunal.

Special Treatment with Pregnancy, Childbirth or Maternity

Section 13 of the Equality Act currently allows women to be given special treatment in connection with pregnancy or childbirth. EU case law goes further than this and makes it clear that any unfavorable treatment of a woman related to pregnancy or maternity constitutes direct sex discrimination. The government is adding the word "maternity" into the relevant provisions to ensure that tribunals continue to interpret the law expansively.

Section 18 prohibits pregnancy and maternity discrimination during the "protected period" (the duration of the pregnancy and any statutory maternity leave). If the unfavorable treatment takes place after the end of the protected period but results from a decision taken during the protected period, it will be regarded as having taken place during that period. But protection does not extend when the unfavorable treatment takes place after the woman returns to work and can't be related back to a decision made during the protected period. The new regulations will plug that gap.

Indirect Associative Discrimination

Section 19 of the Equality Act provides that indirect discrimination may occur when A applies to B a provision, criterion, or practice that is discriminatory in relation to a relevant protected characteristic of B's.

However, the requirement for B to have the protected characteristic is inconsistent with EU law. The amended wording will allow B to bring a claim, even if they don't share the protected characteristic, provided they can demonstrate that they suffer the same disadvantage.

This could mean, for example, that men with child care responsibilities may be able to use similar indirect sex discrimination arguments deployed by women looking for family-friendly working arrangements. In addition, workers who care for family members who have disabilities may also be able to argue that requiring them to work full-time or in the office may amount to indirect disability discrimination.

Equal Pay Claims

The Equality Act provides that men and women should receive equal pay for equal work. A woman must be able to point to an actual comparator who is employed by the same employer or an associated employer. Under the Treaty on the Functioning of the European Union, workers don't need to have the same employer; the test is that their terms and conditions must be attributable to a single source.

The Equality Act will be amended to make it clear that an equal pay comparison can be made when there is a single body that is responsible for setting or continuing the terms on which the worker and comparator are employed.

Joanne Moseley is an attorney with Irwin Mitchell, a member firm of FLI, in Birmingham, U.K. © 2023 Irwin Mitchell. All rights reserved. Reposted with permission of Lexology.